Theory Of Legal Fiction In Criminal Law

Legal Fiction is not a notable topic in legal researches. However, the importance ofLegal Fiction’s existence cannot be ignored only because of Legal Fiction is basicallymentioned only when it compared with other concepts, and its researches cannot beconsidered as worthless. Actually, Legal Fiction is a big topic which be widelyapplied in Civil Law, Executive Law and especially Criminal Law. There are lots ofArticles relate Legal Fiction in the present Chinese Criminal Law. However, theapplication of Legal Fiction normally only exists in people’s sub-consciousness, butnot in consciousness, and that is the reason why some scholars likened Legal Fictionto "Iceberg": its "tip" which out of water can be seen by people, but there are still nineparts of contents in the water. In addition, even the one part mostly focused on fieldsof Jurisprudence and Civil Law, and there is less research on Criminal Law’s LegalFiction, no mention a systemic research on this topic. Maybe the vacancy of asystemic research caused people "only can see a tree, but not a forest", and manyscholars pointed various "righteous" queries and interrogates on Legal Fiction. Thevaluation on Legal Fiction is directly related to the application of Legal FictionArticles in present Chinese Criminal Law and the choice of criminal legislativetechniques in the future. Therefore, this article tries to make some groundbreakingworks: to analyze and argue jurisprudence basis and formation essentials of LegalFiction in criminal law, and to prove the value and importance of Legal Fiction in present Chinese Criminal Law through combing articles relate to Legal Fiction inChinese Criminal Law. This article is divided into introduction and main body,depending on the differences among contents, the main body is separated as followingsix parts.The first chapter illustrates the concept, features, types and roots of legal fiction.Legal fiction means, based on the consideration of certain values, legislatorsintentionally use the existing legal concepts, norms to explain and apply to the newcircumstances, problems arising in the course of social development, and equaldifferent objects with the same legal effect, so as to achieve the legislative techniqueor activity which could not only adapt to social demand but also reflect legal values.Legal fiction has formal features and essential features; the former refers to diversityand cross-references of fiction fact, the latter means fiction, irrefutability,normalization, non-universality, and policy-drive. Legal fiction could be classifieddifferently according to different purposes and standards: as per different makers, itcould be classified into legislative fiction and judicial fiction; as per differentapplicable legal branches, it could be classified into civil law fiction, administrativelaw fiction and criminal law fiction, ect. Legal fiction is made on specific bases,which could be summarized into four main points. Firstly, legal fiction is made asresponse to the un-limitedness of objective fact. On the one hand, the contradictionsbetween limitedness of human cognition and infinite pursuit of objective fact need bereconciled by legal fiction; on the other hand, to achieve the social stability, it isevitable to use the simplified function of legal fiction to simplify complicated socialissues. Secondly, legal fiction is made to cover legal loopholes. Under criminal law,legal fiction is not only the necessary requirement of covering loopholes and defectsof criminal law, but also the evitable choice of reconciling the legal certainty and theuncertainty in reality. Thirdly, legal fiction is made to maintain legal stability. As thelegislative device, legal fiction could assure the legal stability to maximum extent, bymeans of not only essentially making up the loopholes of existing legal rules, but alsorealizing jurisprudence integrity and internal consistency in the premise of formally maintaining existing legal rules. Fourthly, legal fiction is made to satisfy specificneeds of the society. Legal fiction is the excellent strategy to solve the un-expectablebut inevitable new problem or exceptionable circumstances. Therefore, in order tomeet the social development and consistently adapt to social needs, legislators haveno choice but to rely on legal fiction.The chapter two criticizes and analyzes the legal bases and formation elements. Thelegal bases of legal fiction mainly reflect into the following five aspects: firstly, nomatter for statute law or case law, legal fiction is as typical legislative technique in thelevel of operating practice; secondly, legal fiction is a significant channel throughwhich the criminal policy could be fully implemented via criminal law; thirdly, legalfiction could avoid miscellaneous provisions, maintain legal stability, solve judicialknotty problems, so as to save legal cost, promote maximization the efficiency andvalue of criminal law, and realize economical-efficiency of criminal law; fourthly,legal fiction is the vivid reflection of substantial justice pursued by legislators, justbecause leading by the aim of achieving Balance between Crime and Penalty,legislators formulated several provisions on legal fiction; finally, in the domain of law,particularly the criminal law, we need use analogical thinking to solve upcomingproblems, expand new thinking, so as to simultaneously maintain the legal stable andsolve arising new problems, and the legal fiction under the criminal law is exactly thevivid reflection of analogical thinking in the field of criminal law. It’s undeniable thatalthough legal fiction under criminal law has the aforesaid virtues, e.g.legal-economical efficiency, meanwhile, it indeed could also have certain "threats". Iflegal fiction is made appropriately, its equivalence effect may expand out of people’sacceptable scope, as a result, the functions of criminal law may be violated, doctrineof severe punishment may be aggravated, Balance between Crime and Penalty may beeroded, more seriously, theories of criminal law may subject to chaos. Althoughinappropriate stipulation may cause the aforesaid threats, there is no ground for somescholars to criticize legal fiction as useless or intolerable. We cannot casually useregular criminal law theories to blame deficiencies of legal fiction, and doubt its legitimacy. Although legal fiction focuses on social protection function of criminallaw, however, it by no means would ignore human rights protection function ofcriminal law. Legal fiction neither violate formal nor essential requirement of theprinciple of legality. Legal fiction also does not violate the principle of the unificationof the subjective elements and the objective elements because it neither falls intosubjective culpability nor objective culpability. Legal fiction has unique system ofconstitutive requirement, which is not contradict with the constitutive requirement ofbasic rules, since the application of the constitutive requirement of special provisionsdoes not mean the constitutive requirement of basic rules would become nominal.Therefore, in fact, legal fiction is not as threatening or contradictious as described bythese criticizers. Only when legislators did not formulate legal fiction in accordancewith proper rules and requirements, could cause the unreasonable setting of certainlegal fiction. In addition, given some of unreasonable settings of legal fiction, it isimproper to deduce legal fiction is unreasonable, nor to deny the essential intention oflegal fiction, i.e. pursuing balance of crime and punishment. In addition, according tothe connotation and legal bases of legal fiction under criminal law, we can find thelegal fiction under criminal law generally contains two formation elements:fundamental facts and criterion-referenced statutes. The legal fiction itself isestablished on the basis of fundamental fact. The existing of fundamental fact is theprecondition of establishing legal fiction. Fundamental fact of legal fiction mainlyreflects in two forms: behavior fact which is not evaluated by criminal law and, legalfact stipulated or confirmed by criminal law. The former refers to the behavior factwhich causes serious social perniciousness with the development of society andshould be imposed punishment. In the beginning, this behavior originally did not havesocial perniciousness or had little social perniciousness, therefore, it did not deserve tobe punished nor evaluated by criminal law. However, with the emersion orenlargement of social perniciousness, once it exceeds the threshold of penalty,legislators would fictionalize this behavior as one type of criminal behavior by meansof legal fiction. The latter means, due to other positive or negative behaviors causedby social development or conducted by the doers, the social perniciousness of the behavior is enlarged thereby legislators should aggravate penalty on this behavior, orthe social perniciousness of the behavior is decreased or decimated thereby legislatorsshould alleviate or relieve penalty on this behavior. Owning to the original socialharmfulness of these behaviors, criminal law already evaluated these behaviors.However, because of the following reasons, by means of legal fiction, legislatorsfictionalized these behaviors as certain heavy offense, minor offense, or eveninnocence: social perniciousness of the behavior is increased or the doer conductedother negative behaviors to the extent of deserving heavier penalty; socialperniciousness of the behavior is decreased or decimated, or the doer conducted otherpositive behaviors to the extent of deserving lighter or no penalty. In criminal law,most of legal fiction is established on the basis of this type of fundamental fact.Criterion-referenced statute refers to, in the course of formation of the legal fictioncriminal law code which is referred or abided by. Combining with criterion-referencedstatute, fundamental fact could finally forms legal fiction. Overview the Criminal Law,every legal fiction provision therein all contains criterion-referenced statute; merelysome criterion-referenced statutes are direct and obvious, while others are relativelyobscure. There are two reasons why fundamental fact should combine withcriterion-referenced statute to form legal fiction: on one side, criterion-referencedstatute is fundamental guarantee of the nature of legal fiction; one the other, toachieve economical-efficiency of criminal law, must reply on criterion-referencedstatute.In the third chapter, the articles related to legal fiction under the General Rule andSpecific Provisions of criminal law is sorted and analyzed in details. Legal fictionunder the Criminal Law is not limited to fictional provisions in the SpecificProvisions of Criminal Law, but also includes the rule of "regard falseness as truth"under the General Rules. For instance, the Article6.2of Criminal Law fictionalizesfloating territory as real territory; the Article30of Criminal Law is the fiction of unitcrime; the proviso provision of Criminal Law, e.g. Article8, Article49, Article63.2,Article65, ect. Fictionalize certain circumstances which actually fulfill requirement as not fulfilling; the Article66of the Criminal Law fictionalizes special recidivism asrecidivism; the Article67.2of the Criminal Law fictionalizes quasi-voluntarysurrender as voluntary surrender; the Article91.2of the Criminal Law fictionalizespart of personal property as public property; the Article93.2of the Criminal Lawfictionalizes part of non-national functionary as national functionary; ect. Accordingto varying specific fictionalized object, the legal fiction under Specific Provision ofthe Criminal Law could be classified as legal fiction of objective behavior, legalfiction of subject of crime, legal fiction of subjective aspect, and legal fiction of otherobjectives, ect. Therein, among the legal fictions under the Specific Provision of theCriminal Law, legal fiction of objective behavior has the largest quantities, mostwidespread and complexity. As per the relation between fictionalized behavior typeT1and T2, legal fiction of objective behavior could be further divided intofictionalizing non-criminal behavior as crime, fictionalizing crime as non-criminalbehavior, fictionalizing one type of crime as another, fictionalizing one crime as pluralcrimes, fictionalizing plural crimes as one crime, ect. Fictionalizing non-criminalbehavior as crime means, for certain policy or intention, the criminal law fictionalizesthe behavior non-conforming to constitution of crime as crime, for instance, theArticle102.2,155,236.2of the Criminal Law. Fictionalizing crime as non-criminalmeans, for certain policy or intention, the criminal law fictionalizes the crime asbehavior non-conforming to constitution of crime. This kind of legal fiction onlyexists in one clause of the Specific Provision of the Criminal Law, namely Article383.1of the Criminal Law. Fictionalizing one type of crime as another refers to, thecriminal law fictionalizes behavior type T1as T2, while T1and T2shares certaincommon grounds but the essences are not completely consistent, e.g. the Article196.3,last paragraph of Article248, Article267.2of the Criminal Law. The meaning offictionalizing one crime as plural crimes is, by means of mandatory provisions, thecriminal law changes the combined punishment rule of Article69of the Criminal Law,stipulating one crime which should be evaluated as a whole and judged as one crime,as plural crimes. This kind of legal fiction only exists in one clause of the SpecificProvision of the Criminal Law, namely Article204.2of the Criminal Law. Fictionalizing plural crimes as one crime refers to, in accordance with criminal lawtheory, under the circumstance that the behavior should be imposed combinedpunishment because of conducting plural crimes, considering certain policy orintention, the legislator compulsorily stipulates these plural criminal behaviors s onecrimes, thereby overstepping the combined punishment rule under the Article69ofthe Criminal Law. For instance, the continuing offence provision of Article153.3andanother10continuing offence provisions, the Article171.3,208.2, and398.2. Legalfiction of subject of crime contains fictionalizing people without identity as peoplewith identity, and fictionalizing people with identity as people without identity. Theformer refers to Article382.2, Article388(A).2, ect. The latter such as Article253.2.Legal fiction of subjective aspect contains the last paragraph of Article247, firstparagraph of Article248.1, first paragraph of Article289, and Article292.2. Legalfiction of other objectives mainly contains the Article149.2, Article367.3, Article383.1, last paragraph of Article383.3, and Article451.2.Chapter four distinguishes legal fiction from provision of attention, and discusses theclauses related to provision of attention under the specific provisions of Criminal Law.Provision of attention means, given the premise that criminal law has stipulate basicrules for certain issues, therein, for some circumstances which could be easilyconfused or ignored, in order to avoid being ignored or misunderstood by judicialofficers, the law particularly tick off these circumstances so as to highly remindjudicial officers to notice. Main features of provision of attention are suggestiveness,repeatability, identification, ect. Apart from some similarities between, for instance,both have the function of supplying deficiencies of principal provisions, and bothhave consistency in construction form, meanwhile, legal fiction and provision ofattention also have significant diversities in the aspect of relation between stipulatedcontent and basic provisions, application condition and functions. Therefore, we candistinguish legal fiction from provision of attention through aspects: whether theconclusion made under circumstance of non-existing of this provision is consistentwith existing of the provision; legislative intention of the provision; and whether the provision has universal applicability and popularization. Through grasping thedifferences between legal fiction and provision of attention, we can find severalprovisions of attentions under the Specific Provisions of the Criminal Law. Accordingto the content prompted by the provision, provisions of attentions under the SpecificProvisions of the Criminal Law could be roughly classify into seven types, including:being fully aware, penalizing as accomplice, sentencing combined punishment,convicting as offence of rape, convicting as duty crime, sentencing according tospecial provisions, and other contents need be prompted.In chapter five compares legal fiction with some other concepts which share certain"family resemblance" with legal fiction, such as the transforming offence, thestatutory one crime and one crime in penalty, as well as the presumption, ect.Transforming offence means that the crime exceeds the original basic element of thecrime in the process of a deliberate criminal act because of one more behavior or amore serious result. Based on the requirements of the principle of balance crime,Criminal Law specially provides that the crime occurred changes in this case, and usethe transformed criminal to convict the punishment criminal morphology. The reasonsof some of the articles of the Criminal Law both identified as convertible guilty termsand the terms of legal fiction mainly are that there are two aspects of the correlation inthe legal fictions of transformation guilty and extension of transforming offencebetween the legal fiction and transforming offence. This determines that the onlydifference of the legal fiction and transformation offence is the size of its epitaxial.The transformation offence only contains the types of that put numbers of crimefiction as one crime and then use this behavior fiction as the other act, as well as thesubjective aspects of the legal fiction type of legal fiction terms. Statutory offenseincludes two forms of the volume crime and combinative crime, therefore distinguishthe legal fiction and a legal crime must distinguish between the legal fiction, volumecrime and combinative crime. Volume crime and combinative crime actually arecommitting several crimes prepared for one type of legal fiction. The continuingoffence and transforming offence may exist "intersection" between the legal fiction and the place of a crime. The continuing offence and committed legal fiction actuallyare a crossing relationship, and the intersection is the11legal statutory of continuingoffence of the paragraph3of Article153, paragraph3of Article201, and Article263of the Criminal Law. There are some similarities in the implicated offence and thelegal fiction of putting numbers of crimes together as one type of crime, such as:using disposal of a crime instead of essentially number of crimes; the number ofbehaviors being the heterogeneity and the implications relations in a certain degree;and using one of felony convictions or put a felony punishing in heavier to instead ofnumber of crime. In fact, Implicated offence and the legal fiction have significantdissimilarity. The implicated offence decided to a crime punishment instead ofnumber of crimes, and the legal fiction is putting the numbers of crimes into onecrime legally. It is this distinction determines the implicated offence and legal fictiononly presents a parallel state within the framework of the current Criminal Law, anddoes not exist any provisions that are both the legal fiction and implicated offence.Presumed is that it can be known from the basic facts infer unknown presumed factsexist by law, as well as one evidence of rule that allows the parties use the proofs tocounter or overthrow itself. Legal fictions and presumptions are very similar in form.They both have assumed parts and involve two facts. As long as the existence of a factconfirmed, it will be able to produce the same legal effect as another fact, which isusing one fact of identification to push the existence of another fact. However, thereare large differences between them in the relationship between the two involved facts,the nature, the problem intent to solve, and the impacts of the burden of proof.The Chapter six introduces the certainty of setting rules and procedures of legalfiction in criminal law. Legal fiction, as a kind of legal assumption or untruth, is aspecial legislative activity. As it is not subject to restriction and examine of logic andconventional imputation principle, it maybe lead to some risks. Furthermore, onceappearing improper setting, there are several bad results which may break governmentby law, destroy freedom of people and so on. Thus, to avoid these risks setting legalfiction in criminal law shall be abided by establish regulations. First of all, setting of legal fiction shall follow principles of lawmaking fiction. Moreover, the scope ofsetting legal fiction is limited as the legislative subject and prohibiting judicialauthority and administrative organ make any forms of legal fictions. Secondly, obeythe equality principle. It means that when legislators apply for the legal fiction’s skills,they shall consider whether or not has equivalence for social harm degree undercircumstances of fiction and being fictionalized. Meanwhile, whether or not there areboth facts which can establish the relation of equivalence. Only the followedrequirements are conformed, it shall execute legal fiction. Thirdly, the setting shall fitfor harmonization principle of criminal functions. Namely, it should minimize as faras possible by restricting people’s right and free to achieve policy, intention oflawmaker and stability of social public order. Therefore, if not emphasizing socialprotection, it cannot maintain social order so that harm to life conditions of socialmembers. Legal fiction hereby can be established. Fourthly, modesty principle needsto be concerned. Specifically, both trying to avoid setting ’second law’ as legal ’daringvanguard’ to against to modesty principle and escape from realize unnecessary legalfiction using others’ ways. Fifthly, setting legal fiction conforms to judicialconvenience principle. Legislator should consider actual effect of applying for clausesof legal fiction which if they can solve judicial disputes and so on. In addition, due to’threaten’ maybe created legal fiction is not easy accepted by the public, it shouldsetup stricter specific legislative process to deal with and prevent from the ’thethreaten’ and also obtain sense of identity from the general public. Furthermore, inaddition of legislative procedure of general criminal provisions, there are somespecific legislative processes to rule using of legal fiction’s skills and set its clauses.The specific processes as followed:1) with regard to legal fiction, specific publicparticipation procedures contain legislative hearing and legislative discussion meeting.For eliminating misunderstanding the best way is the active openness rather thanhiding intentionally. Moreover, achieving degree of prediction and understanding ofthe public is helpful for removing misunderstanding and strengthening feel accepted.The best measure is that the public can join formulation of legal fiction clauses.2)Setting legal fiction’s explaining procedure. It indicates that the subject of power executing power shall introduce reasons of behaviors to keep from misuse of power.This is the key point for institutional arrangement of restriction of powers. In addition,only explaining about behaviors it can be understood, accepted and obeyed by thesocial public. Finally, it is beneficial to the basic of legitimacy.3) Setting examine,explain and abolish monitoring programs. In order to realize purposes which includelaws established be general observed and laws obeyed are good law, not only settingprocedures are paid attention, but think highly of monitoring programs mentioned. Itmeans that provisions of legal fiction are examined actively, positively to collectexisting issues during the actual application. Therefore, hard to applying for legalfiction should setup legislative interpretation and artificial improper, losing ’life force"of legal fiction’ provisions should be abolished.